Suo Motu vs State Of Kerala on 5 June, 2009

Kerala High Court
Suo Motu vs State Of Kerala on 5 June, 2009




CRL.REF.No. 1 of 2009()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SUO MOTU

                For Respondent  :SRI.BABU S. NAIR


 Dated :05/06/2009

 O R D E R
              M.SASIDHARAN NAMBIAR, J.
               Cr.Reference No. 1 of 2009
          Dated this the 5th day of June, 2009.

                          O R D E R

The Criminal Reference was suomoto registered on the

report submitted by Chief Judicial Magistrate, Manjeri.

Chief Judicial Magistrate reported that C.C.No.130/1991

was taken cognizance against four accused and during trial,

first accused absconded and the case as against him was

split up and refiled as C.C.No.73/1995. Subsequently it was

transferred to L.P. Register. When he surrendered, the

case was taken on file as C.C.No.154/2006. It is pending

before the Magistrate. Respondent is the said accused.

Chief Judicial Magistrate reported that petitioner had

absconded after recording of the prosecution evidence and

the case was posted for questioning under Section 313 of

Code of Criminal Procedure. The questions to be put to the

petitioner was prepared and available in the case records.

When presence of petitioner was procured he was

questioned under Section 313 of Code of Criminal

CR.R.No.1/2009 -2-

Procedure with the questions prepared earlier. It was

pointed out that subsequently it was found out that after

disposal of the case as against the other accused, the

depositions were destroyed. When the accused absconded

after closing the prosecution evidence, the depositions

should not have been destroyed. Unfortunately, the

accused was questioned and only later it was found out that

the records are not available. It is submitted that the only

course open is a denovo trial.

2. Learned Counsel appearing for the respondent/

accused and learned Public Prosecutor were heard.

3. Even though the evidence was recorded earlier

when petitioner was appearing in C.C.No.130/1991, the

other accused were questioned under Section 313 of Code

of Criminal Procedure, and after hearing the prosecution on

the defence, the other accused were acquitted. After the

presence of the petitioner was procured in the split up case,

finding that the questions to be put to the petitioner are

available in the case records and as petitioner absconded

CR.R.No.1/2009 -3-

only at that stage, Magistrate questioned the petitioner

under Section 313 of Code of Criminal Procedure without

the knowledge that the original depositions are not

available as they were destroyed. Inspite of the steps taken

to get certified copies of the depositions to reconstruct

them, they are not available.

4. The question is what is the procedure to be

adopted. The fact that the other accused were acquitted is

not a ground to drop the proceedings at this stage for non-

availability of records. As the Magistrate reported that

copies of the statements of the prosecution witnesses,

recorded by the investigating officer and the exhibits

marked in the case are available, the only course open now

is to direct a denovo trial.

5. Chief Judicial Magistrate is directed to conduct a

denovo trial of the accused in C.C.No.154/2006.


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